It
is not a misstatement, to welcome the judgment of the Supreme Court in the case
of Adi Saiva Sivachariyargal Nala Sangal as yet another bold step in the march
of law towards the goal of eradicating caste as a criteria in the appointment
of archakas in Hindu Temples; may be not final but a decisive step that it has
given clear signals that caste would not come anywhere within the four corners
of ‘Agamas’.
On
the other hand, the Government of Tamilnadu as the facts of this case reveal,
seems to have been still stuck with the days of Seshammal
Vs State of Tamilnadu 1972 (2) SCC 1. The Government Order in G.O. No. 118 dated 23.05.2006 under challenge is nothing but a damp
squib that it only stipulates ‘Any
person who is a Hindu and possessing the requisite qualification and training
can be appointed as a Archaka in Hindu temples’ It does require
only a child’s brain to understand
that this is not even a small step from what we were after Seshammal; the term ‘requisite
qualification’ is the dampener.
Why an attempt, which in
my opinion not even a pussy’s meow was hailed then as a lion’s roar driving the
Sivachariargal to the Supreme Court?
It was the Ordinance No.5
of 2006 dated 14.07.2006, which sought to amend the Section 55(2) of the HR
& CE Act 1959 to the effect that ‘No person to shall be entitled to be
appointed to any vacancy …………………………….. “merely on the ground of any custom or
usage”
The Ordinance would
surely have upset the Seshammal’s case because in Seshammal it was held though
the Trustee need not appoint an archaka on hereditary principle, he could not give up the usage governing appointments, in
other respects. Besides the Supreme Court in Seshammal seems to have suggest
that if the Government brings any Rule in the appointment of archakas in
violation of agamic rituals and ceremonies, the same could be challenged.
Alas, that roar was silenced
even before it reaches the lion’s own ear; the Ordinance did not materialize and
was dropped. I am wondering now why then this much ado about nothing?
The Supreme Court only
considered the Government order; no wonder it is upheld as in the case of Seshammal,
upholding the amendments to the HR & CE Act. Does this look like a splendid
coincidence that both in Seshammal and Saiva Sivachariargal, the Supreme Court upheld
the Government legislations but still no celebration on the Government side;
people siding with the Government are in fact mourning.
In Seshammal, what the
Supreme Court has stated about usage or agamas was taken as an affirmation of
caste as a criteria in the appointment of archakas; though the judgment does
not speak about caste at all; it was referred only in the submissions of the
Counsels and that too in not more than two places. There is no categorical
pronouncement in Seshammal that agamic injunctions proscribe persons who do not
belong to Brahminical caste from doing the service as archaka. Still no one
questioned or doubted but now questions are being raised; surely the law has
marched forward.
The submissions of the Government
in Saiva Sivachariargal case is strikingly similar to what was submitted in Seshammal.
As in Seshammal, the Advocate General conceded that ‘if the usage or
practice of a temple required the archaka of a temple to be of a particular
denomination the said usage is binding’
Beyond this what more to
be decided, one may think as this was already considered or rather conceded in
Seshammal. True to its consistency the Supreme Court too disposed of the writ
petition by upholding the Government Order and reiterating that appointments or
archakas must conform to the agamas, governing the respective temples.
What in the minds of all
following Saiva Sivachariargal case was ‘Caste’ and no one worried about
denomination, which the Supreme Court has laid much stress in its judgment.
Supreme Court even includes group/sect and particular segment with denomination
but the word ‘caste’ is shunned as if it is taboo. Supreme Court ended up
finding that it is nothing wrong the archakas are appointed from a particular
denomination/sect/group if the agamas injunct the others; no word about caste.
The million dollar
question now is whether the terms denomination/sect/group or particular segment
include caste as a criteria or that by quoting agamas persons belonging to a
particular caste can be prevented from doing the service of archaka. The beauty
of this case is where the Government failed, the Supreme Court succeeded in taking
up a stride; much farther than it took in N.Adithayan’s
case. Though the word caste
was shunned, the Supreme Court has indicated in clear terms that ‘caste can no
longer be a criteria’, which in my opinion has far reaching implications in the
future appointments of archakas.
The Supreme Court while
concluding the judgement finds that ‘In this regard it will be necessary to
re-emphasize …………………………………….. that the exclusion of some and inclusion of a
particular segment or denomination for appointment as Archakas would not
violate Article 14 so long such inclusion/exclusion is not based on the
criteria of caste, birth or any other constitutionally unacceptable parameter’
This finding means any consideration of caste in determining a particular
denomination entitled to be appointed will violate fundamental right to
equality.
In another place the
Judges further state that the discussions in Seshammal ‘proceeds on the
basis that entry to the sanctum sanctorum for a particular denomination is
without any reference to caste or social status’ Can we take it that even
in Seshammal caste was not a consideration? If anyone has doubt it will be
cleared by what the Judges say in the end of the said 26th para with
‘Exclusion solely on the basis of caste was not an issue in Seshammal’’
The judges have no second
opinion even in 41st para that Seshammal did not consider caste but only
denomination and before concluding the paragraph with their much publicized observation
‘The constitutional legitimacy, naturally, must supersede all religious
beliefs or practices’ state in unequivocal terms ‘Surely, if the Agamas
in question do not proscribe any group of citizens from being appointed as
Archakas on the basis of caste or class the sanctity of Article 17 or any other
provision of Part III of the Constitution or even the Protection of Civil
Rights Act, 1955 will not be violated’
If we remove the double
negative the above finding would read and mean ‘fundamental right guaranteed
under the constitution would be violated if agamas proscribe any person from
being appointed as archakas on the basis of caste or class’; even N.Adithayan, considered to be a revolutionary judgement falls
short of saying this.
Now science has proved by genetic evidence, that all human
beings in existence now descend from one single man who lived in Africa about
60,000 years ago. ‘No caste is pure’ and mankind is a story of migration,
miscegenation and cultural evolution, says RM. Pitchappan, Professor Emeritus,
School of Biological Sciences, Madurai Kamaraj University and the Regional
Director of the Geographic Project. Supreme Court in its observation that ‘such exclusion (in the agamas) is not on
the basis of caste, birth or pedigree’ only echoes such scientific temper.
What more is required to
celebrate this judgment as a giant leap towards temples sans castes; but all
credit must go to Saiva Sivachariargal, who fought an issue that was not there
and ended in stuck with a finding, which is not to their liking.
For full text of the Judgment :
http://supremecourtofindia.nic.in/FileServer/2015-12-16_1450255713.pdf
